Dodd-Frank Act: Implications for Securities Activities of Banks and Their Affiliates

Abstract

The regulatory framework governing securities activities of banks and their affiliates has assumed unprecedented importance in the aftermath of the financial crisis. The Dodd-Frank Wall Street Reform and Consumer Protection Act makes it even more critical for banking attorneys to understand the securities laws and for securities attorneys to understand the banking laws. All major U.S. securities firms now are affiliated with banks. During the crisis, the largest Wall Street securities firms became part of bank holding company organizations subject to regulation by the Federal Reserve Board. The Dodd-Frank Act solidifies the Board’s jurisdiction over these entities and makes the banking laws even more relevant to their operations. At the same time, the securities laws remain fully applicable, and the Securities and Exchange Commission has been given enhanced regulatory and enforcement powers. This paper discusses the implications of the Dodd-Frank Act for securities activities of banks and their affiliates. Among other things, it discusses the “Volcker Rule” limitations on proprietary trading and hedge fund activities, restrictions on bank swaps activities, new requirements for the securitization of bank assets, and provisions that could impose fiduciary duties on securities broker-dealer affiliates. This paper also describes how the new regulatory regime has strengthened the Federal Reserve Board’s oversight of “functionally regulated” securities affiliates of banks and the financial system as a whole, and also discusses the role of the new Financial Stability Oversight Council.